Cyriac Abraham v. Washington Group Int'l

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2050
CYRIAC ABRAHAM,
Plaintiff-Appellant,
v.
WASHINGTON GROUP INTERNATIONAL, INC. and
URS CORPORATION,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 12-cv-198-bbc — Barbara B. Crabb, Judge.
____________________
ARGUED NOVEMBER 8, 2013 — DECIDED SEPTEMBER 9, 2014
____________________
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Washington Group, Inc. (“Wash-
ington Group”), an engineering, construction and manage-
ment services company, offered Cyriac Abraham a position
as a “lead scheduler” for a construction project in Wisconsin.
After a few rounds of negotiations, Washington Group sent
Abraham a letter offering him the title of “project control
manager”—a position higher up the chain of command than
2 No. 13-2050
that of lead scheduler. In this suit, Abraham claims that
Washington Group and its parent, URS Energy and Con-
struction (now URS Corporation) not only offered him the
title, but also promised him that he would perform the du-
ties of a project control manager and then breached that
promise. 1 Washington Group claims that Abraham under-
stood that it would give him the title of project control man-
ager for purposes of increasing his salary but he would per-
form the functions of a lead scheduler on a day-to-day basis.
We affirm the district court’s grant of summary judgment
for the Washington Group.
I.
Ordinarily we would begin our opinion with a recitation
of the facts, and in the case of an appeal from a dismissal on
summary judgment, we would take those facts in the light
most favorable to the non-movant, who in this case is the
appellant, Abraham. Miller v. Gonzalez, Nos. 11-2906,
12-2950, 2014 WL 3824318, *5 (Aug. 5, 2014). The district
court, however, found that Abraham had violated the court’s
summary judgment procedures by failing to respond
properly to the defendants’ proposed findings of fact. In or-
der to enable the court to determine what facts are disputed
in a summary judgment motion, the district court judge re-
1 Washington Group International, Inc. no longer exists as a legal entity.
On March 23, 2012, Defendants filed a corporate disclosure statement
(R. 2) delineating that URS Energy and Construction, Inc. is the successor
in interest to Washington Group and establishing that URS Corporation
is not a proper defendant in this action. We will refer to the defendants
in this case as “Washington Group.” The defendants point out that “even
if Plaintiff’s claims could survive summary judgment, unless Abraham
were allowed to amend the complaint to name the only possible defend-
ant (URS Energy and Construction, Inc.), his complaint should be dis-
missed.” Because we are upholding the grant of summary judgment to
the defendants, it is unnecessary to decide this issue.
No. 13-2050 3
quires through her local rules (as many district court judges
do), that the movant submit its proposed findings of fact in a
particular manner. If the party opposing the motion for
summary judgment wishes to dispute a fact, that opposing
party must state her version of the fact and refer to evidence
that supports that version in paragraphs numbered to corre-
spond with the movant’s facts. The court makes clear that if
a party fails to follow the procedures, it will accept the
properly proposed fact for purposes of evaluating the pro-
priety of summary judgment. R. 6.
Abraham submitted only his own affidavit which did not
respond to the defendant’s proposed findings, contained
several legal conclusions, and failed to follow the rule in
other ways (for example, by failing to answer each num-
bered fact proposed by the moving party in separate para-
graphs, using the same number and stat[ing his] version of
the fact and refer[ing] to evidence that supports it.) See Abra-
ham v. Washington Group, No 3:12-cv-00198-bbc, R. 26, p. 2–4;
see also Id. R. 32, p. 2. In this appeal, Abraham does not ap-
pear to appeal the district court judge’s ruling that he violat-
ed the rule or the consequence imposed—that is, that the
district court accepted all of the defendants’ proposed facts
as true. And indeed it would be difficult for him to do so, as
this Circuit has routinely held that a district court may strict-
ly enforce compliance with its local rules regarding sum-
mary judgment motions, including the precise local rule at
issue here. Schmidt v. Eagle Waste and Recycling, Inc., 599 F.3d
626, 630 (7th Cir. 2010). We review a district court’s applica-
tion of its own local rules for an abuse of discretion only.
Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1109
(7th Cir. 2004). The affidavit Abraham submitted did not
meet the requirements of the district court’s summary judg-
ment procedures and he made no attempt to correct his mis-
takes after it was pointed out to him by the opposing party’s
4 No. 13-2050
brief. At this point in the proceedings, he objects (and only in
his reply brief) solely to the characterization of his affidavit
as a “sham affidavit,” a matter we will discuss along with
the other legal analyses in the case. In the meantime, we will
continue with the facts as found by the district court.
II.
Washington Group was in the business of providing en-
gineering, construction, and management services to busi-
nesses and government entities. Wisconsin Public Service
hired Washington Group to manage a construction project
near Wausau, Wisconsin, called the Weston 4 project. In
2004, the plaintiff, Cyriac Abraham, was living in California
and working on a short term project in Colorado. Because
the job was ending, he began looking for a new position.
Mark Maier, a third-party recruiter, contacted Abraham
about a position as a lead project scheduler on the Weston
project. Abraham applied for the position and shortly there-
after he had a telephone interview with Bob Villa, a project
control manager with Washington Group. Villa and Abra-
ham discussed the scheduler position and compensation in
the $90,000 range. After the initial interview, Washington
Group flew Abraham to Green Bay, Wisconsin, to meet with
Washington Group employees Chuck Meyer and Lynn
Rohrbaugh, the latter of whom was the project control man-
ager for the Weston 4 project. During the meeting, the three
discussed the project in general, but did not discuss Abra-
ham’s specific duties and the Washington Group employees
did not give Abraham any written materials during the
meeting.
After that meeting, Abraham also applied to Fru-Con
Corporation for a job as a project control manager on a pro-
ject in Sacramento, California at a salary of approximately
$127,000 a year. Abraham told Maier and Villa that he was
going to accept the Fru-Con offer as it was a management
No. 13-2050 5
position with higher pay and it was closer to his family who
were living in California. In response, Washington Group
raised its offer to Abraham. Villa called Abraham and told
him that Washington Group could offer him a salary com-
mensurate with that of a project control manager although
Abraham would be performing the duties of a scheduler. In
order to pay him the higher amount, Villa explained, his title
would be that of project control manager, but he would be
working under the supervision of another project control
manager. Around this time, Washington Group also gave
the title of project control manager to other employees in or-
der to fill positions at higher pay. No one at Washington
Group discussed performing any project control manager
duties with Abraham.
Washington Group sent Abraham a letter dated May 21,
2004, which stated in part:
We are pleased to confirm our offer of employ-
ment to you with the Washington Group Interna-
tional, Inc. Your title will be Project Control Man-
ager with a monthly salary of $8,750 and your as-
signment will be on our Weston Project in Green
Bay, Wisconsin. Your start date is scheduled for
June 1, 2004.
R. 16-2.
The offer packet included other standard employment
documents, but there was no written job description at-
tached. Abraham accepted the offer on May 24, 2004, and
began working as scheduled on June 1, 2004.
Before joining Washington Group, Abraham’s sole dis-
cussion with any Washington Group employee about job
duties was the one he had with Villa over the phone when
he was told he would perform the duties of a scheduler de-
spite his title as manager.
6 No. 13-2050
For more than a year, Abraham performed his duties as a
project scheduler, performing analyses on and managing the
schedule, developing procedures, and conducting weekly
meetings. On May 27, 2005, Abraham sent the following
e-mail to Villa.
Unfortunately, we both missed or overlooked
some points in our earnest desire to close the hir-
ing process speedily, some time in May 04.
• It is a fact that I would not have come to [de-
fendant] if you had not offered a Manager posi-
tion. I knew the field title was “Lead Project
Scheduler.”
• You told me there would be a Project Controls
Manager. … I did not think he was going to get
into scheduling and assumed he would leave that
to me entirely.
I think, for me to work as a scheduler under the
instructions of some one, that stage has past [sic].
If I try to do that, it will be just a misuse of a valu-
able resource and I will be doing an injustice to
the employer and myself. … I do not have a prob-
lem to accept the leadership [the project control
manager] on this project. This is a large project
and complex … . Unfortunately no one has de-
fined what is the scope of my work … . So I do
request you to send me a job description and
what you expect me to do.
You have hired me as Project Control Manager at
grade 17. But you told me (or did I misunder-
stand?) this Wednesday that you had no intention
to place me as a Manager. Why? I would request
you to look at the corporate HR policy on this po-
sition, relevant part of which I have copied and
No. 13-2050 7
attached for your quick reference. As per this, a
[project control manager] at grade 17 “Generally
works under the direction of a business unit di-
rector, operations manager, regional office man-
ager or project manager.” My situation is very
different. Why?”
R. 15-1 at 1.
Villa responded by email, stating,
There is still a misunderstanding or miscommu-
nication between you and I … . In our initial dis-
cussions prior to you accepting [defendant’s] of-
fer, the position I described to you was that of the
Lead Scheduler on the Weston 4 project … . When
you accepted our offer, my understanding was
(and from our conversation this week you con-
firmed) that you recognized the position you
were being hired for was Lead Scheduler and you
would report to the [project control manager]. …
Because of your experience and capabilities, you
were offered a salary that was a grade 17 which
has a corporate title of Project Controls Manager.
You were hired at the corporate title (and salary)
of Project Controls Manager to fill the position of
Lead Scheduler. … We do have an organization
on the project as you know. Greg is the [project
control manager] with full responsibility for the
group. But, Cyriac, you are a very important
member of the project controls team. … You have
full responsibility for managing the schedule on
the project, in itself a major responsibility and one
you should not take lightly. A major success fac-
tor on the project will be meeting this schedule. A
job description would be helpful for you and you
should discuss this with Greg. …
8 No. 13-2050
Id. at 2.
Abraham, in turn, responded to Villa’s email, stating,
I really appreciate your reply. There is nothing
in your reply I could disagree with except for
the fact that I am not in the loop on many is-
sues where I need to be on this project. I am
upset because various discussions have [taken]
place without me where schedule inputs were
very important. … Let us leave this discussion
here. Greg may learn the value of delegation,
or some day I may be able to move into anoth-
er project when a suitable opportunity aris-
es. …
Id. (emphasis ours).
In February 2006, Abraham applied for and then accept-
ed a position with another company which offered him a po-
sition in Connecticut with an annual compensation package
of $150,000. He resigned from Washington Group on Febru-
ary 17, 2006, and worked his last day on March 3, 2006.
On March 1, 2012, Abraham filed suit in Wisconsin state
court alleging that the Washington Group and its parent,
URS Corporation breached its contract with him and mis-
represented the terms of his employment. Washington
Group timely removed the case to the federal district court
where the court granted the defendants’ motion for sum-
mary judgment in its entirety. Abraham filed a timely Rule
60 motion for relief from judgment which the district court
also denied. Abraham appeals only the breach of contract
claim and, after a de novo review, (see Seiser v. City of Chica-
go, No. 13-1985, 2014 WL 3907111, *4 (7th Cir., Aug. 12,
2014)), we affirm.
No. 13-2050 9
III.
Abraham contends that the Washington Group breached
a contract by hiring him as a project control manager but
failing to give him the corresponding duties. As the district
court concluded, however, Abraham failed to identify any
contract, oral or written, in which the Washington Group
promised to give Abraham specific duties that were different
than those to which he was assigned. Because of this conclu-
sion, the court held that the case failed to present any genu-
ine disputes of material fact and the movant, Washington
Group, was entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Townsend v. Cooper, No. 12-3620, 2014 WL
3511731, *5 (July 17, 2014).
On one issue the parties agree: The contract—that is,
Washington Group’s offer letter—was unambiguous on its
face. As such, under Wisconsin law, which governs this dis-
pute, the interpretation of an unambiguous contract consti-
tutes a question of law. Betz v. Diamond Jim's Auto Sales,
849 N.W.2d 292, 299 (Wis. 2014). When the terms of a con-
tract are unambiguous, a court must construe the contract
according to its literal terms and we presume the parties’ in-
tent is evidenced by the unambiguous words they chose. Tu-
fail v. Midwest Hospitality, LLC, 833 N.W.2d 586, 592 (Wis.,
2013). If the terms of a contract are unambiguous, a court is
barred from considering any extrinsic evidence such as prior
or contemporaneous understanding or agreements between
the parties. Id. at 593. Unambiguous contract language is
given its plain and ordinary meaning, as it is written. Id. at
592. And under Wisconsin’s parol evidence rule, “When the
parties to a contract embody their agreement in writing and
intend the writing to be the final expression of their agree-
ment, the terms of the writing may not be varied or contra-
dicted by evidence of any prior written or oral agreement in
10 No. 13-2050
the absence of fraud, duress, or mutual mistake.” In re Spring
Valley Meats, Inc. v. Bohen, 288 N.W.2d 852, 855 (1980).
The only contract between the parties was the offer letter
which straightforwardly stated:
Your title will be Project Control Manager with a
monthly salary of $8,750 and your assignment
will be on our Weston Project in Green Bay, Wis-
consin.
R. 16-2.
Thus the contract offered the following three things: (1)
the title of project control manager, (2) a salary of $8,750 per
month, and (3) an assignment to the Weston Project in Green
Bay, Wisconsin. Abraham received all three of these prom-
ised items. The letter does not contain any description of or
any promise that Abraham would perform any specific du-
ties.
In the employment discrimination context, we have rec-
ognized that it would not be prudent for a court to micro-
manage an employer’s need for flexibility in assigning spe-
cific job duties, at least where they do not materially and ad-
versely alter an employee’s position for discriminatory rea-
sons. See e.g. Barton v. Zimmer, Inc., 662 F.3d 448, 457 (7th Cir.
2011); Stephens v. Erickson, 569 F.3d 779, 790–92 (7th Cir.
2009); Herrnreiter v. Chicago Housing Auth., 315 F.3d 742, 744–
46 (7th Cir. 2002). Abraham is before us with a contract
claim, and not an employment discrimination claim, but the
policy considerations can be extrapolated. Washington
Group entered into a contractual agreement to give Abra-
ham a specific salary and job title at the Weston project.
There are many reasons why an employer might decline to
elaborate specific job duties in a contract, and the need for
flexibility in managing the tasks of any particular project
would be chief among them. It is the court’s job to respect
No. 13-2050 11
the terms of the contract and not manufacture additional
terms that are missing. Seitzinger v. Comty Health Network,
676 N.W.2d 426, 41 (Wis., 2004)
Although Abraham argues that the court should not have
considered extrinsic evidence, in the same breath (or at least
the same paragraph), he argues that the circumstances sur-
rounding his acceptance of the offer evinced an intent for
him to become the lead project manager. He explains:
Abraham rejected WGI’s offer of employment as
a Lead Project Scheduler because he had received
an offer of employment as a Project Control Man-
ager from another employer. When WGI learned
of that offer, it sweetened the deal and sent Abra-
ham a letter offering him the Position of Project
Control Manager.
(Appellant’s Brief at 19). And at the same time as he criti-
cizes the district court judge for relying on parol evidence
(Reply brief at 8), he urges us to consider his own extrinsic
evidence included in his affidavit—first, the fact that he re-
jected the initial lead scheduler offer for a better one (Id. at
19).
The court correctly determined, as the parties agreed,
that the contract was unambiguous and not in need of ex-
trinsic evidence for clarification. R. 26 at 12. Nevertheless,
that extrinsic evidence would not have helped Abraham in
any event. The evidence demonstrated that during the con-
versations and negotiations prior to Washington Group’s
official offer letter, it offered Abraham a position as a project
scheduler but with the salary and title of a project manager.
If there was any doubt about that agreement, the parties re-
iterated their understanding in the May 2005 e-mail ex-
change in which Villa stated, “You were hired at the corpo-
rate title (and salary) of Project Controls Manager to fill the
12 No. 13-2050
position of Lead Scheduler.” R. 15-1 at 1. To which Abraham
responded that “There is nothing in your reply I could disa-
gree with.” Id. at 2.
The only evidence contrary to this assumption was
Abraham’s affidavit which stated that he had received a job
description for the project manager position as part of the
conversations surrounding the offer and attaching that de-
scription. Even if the district court judge accepted the parol
evidence and considered the affidavit, she was ultimately
correct to dismiss the evidence in the affidavit, as a deponent
may not use an affidavit sworn to after a deposition to con-
tradict deposition testimony without giving a credible ex-
planation for the discrepancies. Cleveland v. Policy Mgmt. Sys.
Corp., 526 U.S. 795, 806 (1999); Pourghoraishi v. Flying J, Inc.,
449 F.3d 751, 759 (7th Cir. 2006). The district court was un-
persuaded by Abraham’s explanation—which was simply
that he forgot that he had earlier received the job description
when he sat for his deposition—as are we.
Abraham objects to the characterization of his affidavit as
a “sham affidavit” and indeed the term might imply more of
a nefarious intent than actually suits the situation. But under
Wisconsin law, a “sham affidavit” has a specific definition. It
is a descriptive term used to describe an “affidavit that di-
rectly contradicts prior deposition testimony” and therefore
is considered “generally insufficient to create a genuine issue
of fact for trial, unless the contradiction is adequately ex-
plained.” Yahnke v. Carson, 613 N.W.2d 102, 109 (Wis., 2000).
Such was the case here.
Abraham received all of the promises set forth in the un-
ambiguous written contract and for that reason there can be
no disputed fact of material consequence and the district
court correctly found that Washington Group was entitled to
judgment as a matter of law.
AFFIRMED